United States v. Harold Callaway , 585 F. App'x 867 ( 2014 )

Case: 13-51169 Document: 00512853134 Page: 1 Date Filed: 12/01/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 13-51169 December 1, 2014
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
HAROLD BRUCE CALLAWAY,
Defendant - Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:13-CR-187-1
Before JOLLY, BARKSDALE, and OWEN, Circuit Judges.
PER CURIAM: *
Harold Bruce Callaway pleaded guilty to four counts of production of
child pornography, in violation of 18 U.S.C. § 2251(a), and two counts of
production of obscene visual depictions of sexual abuse of a child, in violation
of 18 U.S.C. § 1466A(a)(1). He was sentenced, inter alia, to 360 months’
imprisonment for each of the four counts of production of child pornography, to
be served consecutively, and 240 months’ imprisonment for each of the two
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.
R. 47.5.4.
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No. 13-51169
counts of production of obscene visual depictions of sexual abuse of a child, to
be served concurrently to each other and to the other four counts, for a total of
1,440 months (120 years) in prison.
Callaway does not claim procedural error in the calculation of his
advisory Sentencing-Guidelines-sentencing range. He claims his sentence
imposed within that range is greater than necessary to satisfy the sentencing
goals provided in 18 U.S.C. § 3553(a) and is, thus, substantively unreasonable.
Generally, sentences are reviewed for reasonableness, employing a
deferential abuse-of-discretion standard and presuming a sentence within a
properly calculated Guidelines sentencing range is reasonable. E.g., Gall v.
United States, 552 U.S. 38, 49–50 (2007); United States v. Campos-Maldonado,
531 F.3d 337, 338–39 (5th Cir. 2008). But, in this instance, and as Callaway
admits pursuant to our precedent, review is for plain error because he did not
challenge the substantive reasonableness of the sentence after it was imposed.
United States v. Peltier, 505 F.3d 389, 391–92 (5th Cir. 2007). (Along that line,
Callaway maintains such a post-sentence objection is not required, especially
when defendant’s position regarding substantive reasonableness has been
presented at sentencing. He presents this claim to preserve it for possible
further review. In any event, his substantive-reasonableness claim fails under
either standard of review.) Under the plain-error standard of review, Callaway
must show a forfeited plain (clear or obvious) error that affected his substantial
rights. Puckett v. United States, 556 U.S. 129, 135 (2009). If he does so, we
have the discretion to correct the error, but should do so only if it seriously
affects the fairness, integrity, or public reputation of the proceedings. Id.The district court did not err in sentencing Callaway. It considered
Callaway’s assertions and testimony, other testimony and evidence, and the
appropriate statutory sentencing factors and Guidelines, and made credibility
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No. 13-51169
rulings before concluding that a within-Guidelines sentence was appropriate.
That determination is owed deference, and Callaway’s disagreement with the
district court’s assessment of those factors is insufficient to rebut the
presumption that the sentence is reasonable. E.g., Campos-Maldonado, 531
F.3d at 339.
AFFIRMED.
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